Criminal law’s used as a control tool, since it stabilizes a public sense of justice by providing an assurance of general cooperation with legal rules. (Vincent) In other words, it’s purpose is to safeguard the public, by criminalizing anyone who causes the society to suffer or puts them in a fear of becoming victims of such harm in the future. As societies evolve, and new challenges arise, criminal law has to keep pace(al) with the current happenings. And therefore ,with an intent to protect its citizens from the novel coronavirus (a public health crisis), India, with the help of various acts including the Indian Penal Code, Criminal code of procedure and the Epidemic Diseases Act 1897, provided state governments with the power to prosecute those who violated the lockdown regulations.
The crimes penalized were public orders and therefore considered mala prohibita, since they weren’t unconscionable by their nature, but were banned in order to protect the public during such unprecedented times. Amongst others, sections 144, 270, 188, and 269 of the IPC were implemented. While, the country did make attempts to punish all those who defied the law, various instances were brought up wherein public authorities over-criminalized and misused the laws. (Abhishek Ghai) Hence, this paper, by focusing on a particular instance, attempts at discussing various provisions used by the state, along with their scope of application, defects, and tensions their outcome resulted in, against the credibility of criminal law.
OVERCRIMINALISATION- AN INSTANCE
Tamil Nadu (TN), the second largest state economy of the country, is located in the Southern most region of India. As a result of the pace at which the virus was spreading, the state enforced various restrictions such as curfew timings as a means of controlling its spread. (Government of Tamil Nadu) One instance, wherein the accused was penalized for the same, is the case of Jayaraj- Fenix which occurred in the Tuticorin district of TN. While, this episode proved that under the pretext of controlling the pandemic, a few malicious government officials resorted to taking the law in their own hands, it also revealed the flaws, ineffectiveness and loopholes in our criminal justice system, due to the accused being brutally assaulted and later killed by the police.
In relation to the facts of the case, sources suggest, that on June 19, police found, Jayaraj Fenix, the owner of a mobile shop guilty for violating the curfew timings (as mentioned in TN’s revised lockdown guidelines) by 15 minutes, as a result of the non-closure of his shop. Hence, Fenix was prosecuted under S.188 (disobedience to order duly promulgated by public servant) (Garg), and S.269 (negligent act likely to spread infection of disease dangerous to life), for the non-adherence of these timings. (The Times of India). While he was also charged under S. 353 and S.506(2) of the IPC, these sections aren’t directly related to the usage of criminal law as a tool to monitor the curfew and therefore won’t be analysed since they’re beyond the scope of this paper. However, to analyse the scope of 188 and 269, the definition of both will be examined.
UNDERSTANDING AND COMPARISON OF S.188 AND S.269
Firstly, S.188 states that refusal to respect and follow a public order issued by an authorized public servant, would result in the accused being punished with a fine of Rs. 200 and/or imprisonment of 1 month. However, if this refusal results to greater harm, causing society as a whole to suffer then it is punishable with 6 months of imprisonment and/or fine of Rs. 2000. (The Indian Express)Hence, the violation of the lockdown certainly comes under this sections ambit, since it’s the only manner through which the non-compliance of guidelines can be punished. However, despite the fact that the police can make arrests without a warrant (since S.188 covers cognisable offences) it’s mandatory for them to register an FIR at the time of arrest (R. K. Singh)itself (as stated in the case of Lalita Kumari vs State of UP). (CHAUHAN).
Further this section, in no way provides the police with the right to directly initiate action against the accused, since doing that, is the duty of the courts. Irrespective of such procedures, various events in the past have unveiled instances wherein the police has gone beyond the powers this section provides them with i.e. rather than involving the courts and giving them the opportunity to decide the action to be taken, they themselves have done that, which has often resulted in overcriminalization. Besides the police, other state authorities too have misunderstood/ignored the procedures mandated by this law. Such instances, therefore depict that S.188 has often been used way beyond its scope of application.
Likewise, S.269 is a cognizable offence, which penalizes, anyone who unlawfully/negligently commits an act which may lead to another being affected by the disease. This section demands for a maximum punishment of 6 month imprisonment/fine/both. Similar to S.188, it isn’t applicable to non-cognizable and non-compoundable offences and therefore its extent and scope of application is same as that of S.188. Since the scope of application, along with the few misunderstandings and misconceptions associated with S.188 and S.269 are broadly mentioned above, the viability and defects of both these sections, particularly in relation to the Fenix case will be examined below.
APPLYING THE SECTIONS TO THE INSTANT CASE
Firstly, as mentioned above the scope of S.188 and 269 are both limited to either fining or arresting the victims. This means, even if the wrongdoers are arrested, the state needs to “hold complete responsibility for the accused’s life and physical integrity in jail,” meaning that police have no right to assault them in anyway, or do anything beyond imprisoning them. However, in this particular case the police stripped them naked, smashed their knees, ripped out their chest hair, and inserted metal objects into the victims rectum. (India.com News Desk) This sort of wrongful treatment leads to the question of whether the 15 minute delay was a sufficient reason to arrest them in the first place? This can be answered by quoting PS Raman (forum’s convenor and senior advocate), who stated that the acts for which the accused was picked up, wasn’t heinous in nature, and therefore this could’ve merely been fined.
Moreover, in the case of Joginder Kumar State versus UP, the supreme court ruled that “no one can be arrested on the basis of a mere allegation as mandated by the constitutional rights of a person, unless reasonable satisfaction is reached after proper investigation,” and therefore the
arrest in this case was unreasonable since the reasoning behind their arrest wasn’t satisfactory, rather extremely trivial. Lastly, under this provision an offence isn’t constituted through mere disobedience, it must be shown that this disobedience has/tends to have a certain consequence (K. Kannan) and therefore the usage of this provision didn’t even match its criteria since the police couldn’t even prove that Fenix had a wrongful intent, and therefore didn’t abide by the rules. The answer to the question raised, is therefore no, the police had no reason to arrest them in the first place. This further depicts the improper usage of arresting power by the police without cogent reason in this case.
Since it’s proved that the police certainly misused the law, various people began wondering what could be the intent behind this. Infact, it was later found that even though various other shops in the locality were functioning post the curfew restrictions, only Fenix was prosecuted. By taking all this into account, one of the reasons for this wrongful /unnecessary arrest was attributed to the fact that the father son duo belonged to the Nadar caste (a marginalised caste in the South). This therefore shows that besides the arbitrary use of the provision, this law is also vulnerable to caste discrimination (The Law Brigade Publishers).
During times like these, the wrongful usage of criminal law can’t get any worse, since the rise in its usage is merely leading to malicious officials such as these, manipulating imprisonment as a punishment for any and every act, irrespective of its degree of harm, further increasing the spread of the virus. (Ameya Bokil) Hence, it’s ironic how criminal law rather than fulfilling its ultimate objective i.e. safeguarding people from the pandemic, is in reality exposing people more to it, either through the usage of exaggerate charges i.e. over criminalisation of the offences mentioned under the guidelines or officials misusing their arrest powers due to external reasons/self-benefit.
Secondly, these two sections as mentioned above mandate the making of an FIR at the time of arrest. However, in this case, the police delayed its making by almost an hour, further proving proof that there is still a gaping chasm between what has been mandated and what is being practised by officials. Besides this, even though these sections allow the arrest of an accused
without a warrant, according to the Tamil Nadu Police Standing Order 622 police officials can’t make immediate arrests even in cognisable offences. This means, that S.41A(1) the police were supposed to issue a notice of arrest, however, this was again not done, hence proving the inefficient implementation of the law. Lastly, S.493 CrPc states that if a person is taken into custody without a warrant under bailable offence and is prepared to give bail then such person must be released on bail. However, neither the police officers or judicial magistrate granted bail. This case, therefore proves an overall failure on the part of the police and legal authorities in implementing criminal law as a means to control a certain situation. Hence, the wrongful usage, and lack of knowledge possessed by the police and magistrate regarding the implementation and purpose of both S.188 and S.268, led to the laws being used way beyond their scope, over criminalising the offences in hand, hence amounting to more harm, was done than good.
Given our heavy reliance on criminal law, it’s important to examine the tensions that this instance signified regarding the usage of it as a legal tool. While the objective of these guidelines was to not only protect society from the pandemic but to also protect the rights of an arrestee, the criminal law in this instance failed at doing both. This is because, on one hand as a citizen of the society, Fenix, who fell prey to the problem of caste discrimination, was made to stay in the unsanitary and overcrowded lock ups which put his life at a high very threat since he could easily get infected by the virus. On the other hand however, due to the misuse and overcriminalisation of the laws he was harshly tortured, further violating his fundamental rights, and eventually leading to his death. Such an upsetting situation, therefore resulted in many losing trust, respect and confidence in the administration of our country’s criminal justice system. (Saxena)
It also proved the negligence of the legal discourse, since these officials continued to torture the accused over a period of time, however no action to curb the acts of the officers was taken, until the accused was killed. (Katju)Such an instance, therefore exposes the harsh realities of public authorities, since the lack of effectiveness in implementation makes the citizens doubt the system’s creditability, hence making the usage of criminal law insufficient and inefficient, since citizens will stop taking it seriously. (Centre for Law and Policy Research ) In other words, this lockdown depicted how police officials utilised harsh punishments for most acts committed irrespective of their nature, therefore leading to over criminalisation. Such overcriminalisation however amplifies the imperfections that already exist within our criminal system i.e., since our criminal system already reflects our country’s orthodox ideologies/prejudices in various laws which indirectly reinforce problems such as gender discrimination, caste discrimination etc.
And therefore, in such cases overcriminalisation, pushes the limits of the law, further magnifying the usage of strict punishments which lead to more inequalities, inefficiencies, and further problems for marginalised groups. Therefore, in such an instance, merely using punishments to prevent the spread of the pandemic, leads to cases such as that of Fenix, and therefore to prevent the laws from being used beyond their scope of application/ to rectify their misconceptions alternative solutions which combat such problems need to be formulated. Hence, the usage of criminal law in our society, needs to be done with caution in order to prevent expansion of the law beyond its scope, its misuse, and to protect individuals from arbitrary arrests, hence maximising social welfare and eventually attaining the objectives the law wishes to achieve.
- Chiao Vincent, What is the criminal law for? 137-163.(Law and Philosophy 2016)
- Bowles Roger et al, The Scope of Criminal Law ad Criminal Sanctions :An economic view and Policy implications. 389-416 (Journal of Law and Society 2008)
K. Kannan, A. Prakash. Ratanlal & Dhirajlal The Indian Penal Code (LexisNexis, 2019)
- Singh, Rakesh Kumar. “Can police register FIR under Section 188 IPC for violation of lockdown.
- What is Section 188 IPC, under which you will be booked for violating COVID-19 lockdown?( March 24 2020)
- Dr Sarika Garg. Special to Express: Legality of FIR under Section 188 IPC. (July 19 2019) https://indianexpress.com/article/explained/explained-section-188-of-ipc-under-which-you-can-be-fined-rs-1000-for-violating-lockdown-6328022/
- The Law Brigade Publishers <https://thelawbrigade.com/human-rights/human-rights- violations-by-police-in-india-a-comparative-case-study/#Jayaraj_and_Fenix_India (18 September 2020)
- Abhishek Ghai, Ishan Dewan , Taahaa Khan. COVID-19, Criminal Law, and the Section 188 IPC conundrum. (April.28, 2020) https://www.barandbench.com/columns/covid-19-criminal-law-and-the-section-188- ipc-conundrum.
- Katju, Markandey. Custodial deaths of Jeyaraj and Fenix: Accused Tuticorin cops should be arrested immediately; law allows it. (June 28 2020) https://www.firstpost.com/india/custodial-deaths-of-jeyaraj- and-fenix-legal-recourse-available-to-arrest-accused-tuticorin-cops-8534931.html
- Saxena, Sudipti. Fears Tampering Before CBI Transfer (June 30, 2020) https://www.india.com/news/india/tamil-nadu- custodial-deaths-case-enough-evidence-of-assault-says-madras-high-court-4071480/
- The Tuticorin Custodial Deaths and a long history of Police Brutality (June 28, 2020) https://www.barandbench.com/columns/police-brutality-a-long-legal-history
- Centre for Law and Policy Research . LEGAL ACCOUNTABILITY OF THE POLICE IN INDIA. (April 11 2020)
- The Times of India. Thoothukudi custodial deaths : all you need to know. (June 30, 2020)
- CHAUHAN, AALOK. The conflict between Section 188 IPC and Section 195 CrPC. (June 10, 2020
This article has been co-authored by Niti S Khandelwal and Shlok P Shetty of OP Jindal Global Law School